SUMMARY DECISION NO. 964/97 Fibromyalgia. The worker suffered a shoulder and back injury in 1977 for which she was awarded a 10% pension, a wrist injury in 1987 for which she was awarded a 6% pension and a low back injury in 1989 for which she was awarded a 10% pension. She also suffered a further back strain in 1991. The worker appealed a decision of the Appeals Officer denying entitlement for fibromyalgia. The Board denied benefits on the basis that the criteria for fibromyalgia had not been satisfied in that there was little or no evidence that the degree of pain was inconsistent with organic findings and that there was no marked life disruption. Although fibromyalgia is included in the Board's chronic pain disability policy, it is a discrete condition. There was medical evidence that the worker was suffering from fibromyalgia. If fibromyalgia is a non-organic condition, by definition it entails a degree of pain inconsistent with organic findings. If it is an organic condition, this criterion did not apply. Regarding marked life disruption, the presence of diffuse pain, sleep disruption and unexplained tender points indicated a presumption of marked life disruption. The appeal was allowed. [5 pages] PANEL: McCombie; Robillard; Barbeau DATE: 19/09/97
WORKERS COMPENSATION APPEALS TRIBUNAL DECISION NO. 964/97 [1] This appeal was heard in Toronto on September 9, 1997, by a Tribunal Panel consisting of : N. McCombie : Vice-Chair, P.A. Barbeau : Member representative of employers, M. Robillard : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Officer N.J. Hiebert, dated March 1, 1996. That decision concluded that the worker s entitlement to compensation benefits ceased as of October 1992. It was also concluded that the worker did not meet the Board s criteria for entitlement on the basis of a fibromyalgia condition. [3] The worker appeared and was represented by A. Bomé from McQuesten Legal and Community Services. The accident employer indicated that it would not be participating. C. Filejski attended to translate in the Italian language THE EVIDENCE [4] The Panel considered the material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1). In addition, we considered one Addendum (Exhibit #2). [5] The Panel also heard no oral evidence, nor submissions. We indicated at the start of the hearing that, based on our review of the written record, we would allow the appeal as outlined below. THE ISSUES [6] Mr. Bomé argues that the worker should have entitlement for a fibromyalgia condition. He was also prepared to argue that the worker should have entitlement to full future economic loss ( FEL ) benefits. For reasons outlined below, the Panel only dealt with the fibromyalgia entitlement issue. THE PANEL S REASONS [7] The worker had a series of previous compensable accidents which resulted in various permanent impairment assessments, as follows: 1. May 13, 1977: An injury to the worker s left shoulder and upper back injury resulting in a 10% permanent partial disability for chronic tendinitis affecting the left shoulder. The worker was also granted a two year provisional award under this claim for a condition diagnosed as conversion hysteria ;
Page: 2 Decision No. 964/97 2. June 1, 1987: an injury to her left wrist resulting in a 6% permanent partial disability award; and, 3. September 23, 1989: A low back injury resulting in a 10% permanent partial disability award. [8] On November 18, 1991, the worker sustained a further injury when she slipped and fell at work. The initial diagnosis was strain to the neck and low and mid back. The WCB accepted entitlement on an aggravation basis. [9] Initially, the WCB paid lost time benefits until April 1992. As of that time, it was held, the worker had returned to her pre-accident level of disability. This decision was overturned by a Decision Review Specialist who concluded that the worker continued to be disabled until she was assessed by Dr. A.A. Cividino, a rheumatologist, on October 21, 1992. [10] Dr. Cividino, in his report dated October 28, 1992, noted that the worker had 18 out of 18 trigger points, had sleep disturbance and diffuse tenderness. He concluded: Certainly part of this woman s history is suggestive of inflammatory back pain. She also has evidence of underlying fibromyalgia which is clearly amplifying her symptomatology. [11] Dr. Cividino again saw the worker two months later. In a report dated December 30, 1992, he again noted: On examination there is certainly tenderness over the spinous process of C7. She has 18 out of 18 tender points with diffuse tenderness about the cervical and lumbar spine. Reflexes are physiogical. Straight leg raising is normal. Clinically I feel that her features are evolving more of a typical chronic myofascial neck and back pain with some pain amplification and underlying fibromyalgia. [12] It is clear to this Panel that there was no substantive change in Dr. Cividino s findings between these two visits. It is also clear that Dr. Cividino, a rheumatologist, has given a considered diagnosis of fibromyalgia. [13] The Appeals Officer found that the criteria for fibromyalgia has [sic] not been satisfied. He found that there was little or no evidence that the degree of pain is inconsistent with organic findings and that there was not marked life disruption. [14] These criteria are those applied for chronic pain disability. Fibromyalgia, while considered to be a variant of chronic pain in Board policy 1, is a discrete condition. Enclosed in the addendum prepared by Tribunal Counsel Office is a discussion paper on fibromyalgia syndrome prepared for the Tribunal in April of 1997 by Dr. D. Gordon, senior rheumatologist, the Toronto Hospital. The Panel has found this paper helpful and would refer to the following comments by Dr. Gordon: 1 Operational Policy Manual, Document # 03-03-05. 2
Page: 3 Decision No. 964/97 Fibromyalgia (FM) is one form of chronic pain disorder affecting the musculoskeletal (MSK) soft tissues of the body. It is not a type of arthritis or joint disease and for that reason is termed a nonarticular rheumatic condition. The chief symptom of FM is the presence of widespread pain associated with a lowered pain threshold resulting in painful tenderness affecting specific MSK sites detectable on pressure or palpation. These specific sites known as tender points are recorded by the examiner as present or absent. If present, they may be compared to standard control sites located at a distance from the tender points. It is characteristic that patients diagnosed with FM for the first time are usually unaware of the presence of these tender points. A patient with widespread pain, generalized achiness affecting 3 of 4 main regions, upper and lower body, left and right, with the presence of at least 11 of 18 tender points meets the 1990 American College of Rheumatology (ACR) criteria for the diagnosis of FM. The pain of FM is worse with sustained repetitive physical activity and although there are many other symptoms associated with FM such as dizziness, headache, fatigue, poor memory, non-restorative sleep, and irritable bowel or bladder symptoms, these are not part of the ACR criteria. However, in addition to the widespread chronic pain lasting more than three months, these other symptoms are generally present. FM is often confuse with some other conditions that are frequently associated with it. These include - chronic fatigue syndrome (CFS), myofascial pain syndrome (MPS), sleep disorders and psychological problems.... Local or regional MPS overlap with FM, but by definition they are recognized by the presence of painful trigger points not tender points. These trigger points refer to an area of deep muscle tenderness whereas tender points are of diffuse soft tissue origin. The most important difference between FM and MPS is that MPS is usually a regional pain disorder, whereas FM is a generalized chronic pain disorder. Moreover, unlike FM, patients with MPS do not ordinarily show chronic fatigue, sleep disorders or psychological depression.. By general consensus, it [FM] is a syndrome of multifactorial causes, for which a number of theories have been advanced One controversial hypothesis takes the position that FM is primarily a psychologic or psychiatric disorder. While it is true that many patients with FM suffer anxiety or depression, it is not clear whether these problems are cause or an effect. On balance, most studies do not support the view that FM is primarily a psychologic disorder. [15] It seems clear from this description, as well as the medical reports from Dr. Cividino and others, that if fibromyalgia is held to be a non-organic condition, by definition, it entails a degree of pain is inconsistent with organic findings ; if it is held to be an organic condition, then this criterion does not apply. As for marked life disruption, the presence of diffuse pain, sleep disruption and unexplained tender points again speak to a presumption of marked life disruption. [16] We also note that the worker s entitlement to fibromyalgia was initially accepted. As noted by Dr. R.G. Redfearn, WCB regional medical advisor, in a memorandum dated June 14, 1994, Fibromyalgia may follow any injury. [17] At this point the wheels were set in motion for consideration of a non-economic loss ( NEL ) and FEL award. This process was halted, however, when a manager noted in a memorandum dated August 17, 1994, the worker s previous permanent partial disability awards, totalling 26%. 3
Page: 4 Decision No. 964/97 I do not feel that the diagnosis of fibromyalgia is inconsistent with the organic findings. It is indicated in his [Dr. Cividino s] report that it is pre-existing but I feel that the diagnosis is a result of her prior problems and not allowable under this file. [18] This cause us some confusion. If the diagnosis of fibromyalgia is consistent with the organic findings, it is not apparent prior to the November 1991 injury. If it is a result of her prior problems, these problems are also compensable and consideration should be given for a re-assessment under these prior claims. [19] We are therefore satisfied that the worker does have fibromyalgia and that, more probably than not, it arose as a result of the 1991 accident. While Mr. Bomé had intended to argue the level of FEL and other benefits, we noted at the hearing that the Appeals Officer had not addressed this issue and that it made sense to remit the determination of benefits to the Board. This would return the adjudication to the point that it was at in June 1994 when entitlement had been accepted. Mr. Bomé agreed. THE DECISION [20] The appeal is allowed. The worker has entitlement for a fibromyalgia condition. The Board is directed to determine the further benefits flowing from this finding. DATED: September 19, 1997 SIGNED: N. McCombie, P.A. Barbeau, M. Robillard 4